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Gauhati High Court · body

2010 DIGILAW 795 (GAU)

State of Tripura v. Pradesh Roy and Anr.

2010-10-01

P.K.MUSAHARY

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1. I have heard Mr. A. Ghosh along with Mr. P. Bhattacherjee, learned Addl. P.P, for the appellant and also heard Mr. S. Datta, learned counsel appearing for the respondents. 2. The State is the appellant in this case. The appeal has been preferred against the judgment and order dated 13.2.2007 passed by the learned Session Judge, North Tripura, Kailashahar in ST 12(NT/K)/1999 acquitting the respondents from the liability of charges under section 306/498A, IPC. 3. The prosecution story is that one Harendra Chandra Dey of Rajnagar, Fatik Roy PS., reported that on 17.6.1998 at about 2.00 p.m. he learnt that his third daughter namely, Namita Roy, w/o accused respondent No.1, expired at Kumarghat rural Hospital. His daughter was married with the accused respondent No.1 in the year 1994 and after solemnization of marriage, she was subjected to torture by the respondent Nos.1 and 2 and he suspected that this untimely death of her daughter was due to such physical torture. The said information was registered in the general diary book of the police station and the same was entered as G.D. entry No.514 dated 17.6.1998. The police started investigation under section 157(1) of the Cr.PC. 4. In the course of investigation, it transpired that just after 3 or 4 months of their marriage both respondent Nos. 1 and 2 started torturing upon the deceased both physically and mentally. There were Panchayat Baithaks to solve the problem but the respondents did not stop the torture on the deceased. In the first part of 1997, the deceased Namita Roy was shifted to the house of one Anath Deb at Jalai village. The said Anath Deb is the uncle of respondent No.1 and in the night of 16.6.1998 at about 11.00 p.m., there was a quarrel between Anath Deb and his nephew Ashim Deb and in the said quarrel, Ashim Deb asked Namita Roy, deceased, not to live in his house else she was threatened to be killed. Out of fear, the deceased spent the night outside the house and in the morning of 17.6.1998, she along with one, Tapashi Deb, returned to her matrimonial house at Kumarghat. The deceased disclosed what happened in the house of Anath Deb and made an appeal to her husband and mother-in-law to allow her to stay in her matrimonial home. Out of fear, the deceased spent the night outside the house and in the morning of 17.6.1998, she along with one, Tapashi Deb, returned to her matrimonial house at Kumarghat. The deceased disclosed what happened in the house of Anath Deb and made an appeal to her husband and mother-in-law to allow her to stay in her matrimonial home. But she was not allowed to stay there and she was asked to proceed towards Jalai. However, the deceased with her friend Tapashi Deb and respondent No. 1 reached a place near a water tank at Kumarghat. While they were waiting for a vehicle, the deceased was found weeping and some time thereafter her husband brought her to Kumarghat hospital stating that she had consumed liquid poison and thereafter in the hospital she expired at 11.30 a.m. 5. The I.O., after investigation, submitted charge sheet against the respondents under sections 306/498A, IPC and the case was committed to the Court of Sessions, North Tripura, Kailashahar. The learned trial court accordingly framed charges under the aforesaid sections against the respondents to which they pleaded not guilty and claimed trial. The prosecution examined, in all, 12 witnesses while the defence examined none. At the conclusion of the trial and upon hearing the learned counsel for the parties, the learned trial court acquitted them of the charges. Hence, this appeal against the respondent Nos.1 and 2 only. 6. Mr. Ghosh, learned Addl. P.P., taking me through the evidence of prosecution witnesses, particularly, PW-1, PW-4 and PW-8, who, according to the prosecution, are star witnesses, submits that the charge against the accused respondents under section 498A, IPC has been proved beyond reasonable doubt and the learned trial court committed grave error of facts and law as well in discharging them from the said charge. In respect of charge under section 306, IPC, it is submitted that although there is no direct evidence on records, the prosecution has been able to prove the charge by circumstantial evidence and convict the accused respondents under section 306, IPC. 7. Mr. Datta, learned counsel on the other hand submits that there is no error in the finding and conclusion arrived at by the learned trial court. So also there is no error in the judgment and order acquitting the present accused respondents and the same warrants no interference in appeal. 8. 7. Mr. Datta, learned counsel on the other hand submits that there is no error in the finding and conclusion arrived at by the learned trial court. So also there is no error in the judgment and order acquitting the present accused respondents and the same warrants no interference in appeal. 8. Before considering the evidence of the prosecution witnesses in respect of the charge under section 498A, IPC, it is necessary to have a close look at the relevant provisions in the IPC. Section 498A reads as under - "498A. Whoever, being the husband or the relative of the husband of a woman, subjects such woman to cruelty shall be punished with imprisonment for a term which may extend to three years and shall also be liable to fine. For the purpose of this Section "cruelty" means - (a) any willful conduct which is of such a nature as is likely to drive the woman to commit suicide or to cause grave injury or danger to life, limb or health (whether mental or physical) of the woman; or (b) harassment of the woman where such harassment is with a view to coercing her or any person related to her to meet any unlawful demand for any property or valuable security is on account of failure by her or any person related in her to meet such demand." 9. Now, let me appreciate the evidence of star witnesses namely, PW-1, PW-4 and PW-8. PW-1 is a neighbour who deposed that after the marriage the relation between deceased and the accused respondent No.1 was cordial but within a year his mother started misbehaving and torturing her mentally. Before the death of the deceased, Panchayat meetings were held on some occasions to resolve the issue. In those meetings, deceased was present where she narrated about the torture and dowry demand from her parents. In the course of examination, she stated that regarding demand of dowry/money this witness stated before the 'Darogababu' but he does not know why his statement was not recorded by 'Darogababu'. PW-4 is the father of the victim woman. In his evidence, he also stated about the physical torture, panchayat bhaithaks and dowry demand made by the accused respondents. He claims to have stated about the dowry demand before the 'Darogababu' but he cannot say why 'Darogababu' did not record his statement. PW-4 is the father of the victim woman. In his evidence, he also stated about the physical torture, panchayat bhaithaks and dowry demand made by the accused respondents. He claims to have stated about the dowry demand before the 'Darogababu' but he cannot say why 'Darogababu' did not record his statement. PW-8 is a village leader, who corroborated the evidence of PWs-1 and 4. The I.O. was examined as PW-12. In cross-examination, he categorically stated that during examination, none of the witnesses told him about the dowry demand. From the evidence of the aforesaid star witnesses, it is found that the defence, in cross-examination, did not put any suggestion to the effect that the victim was not tortured by the accused respondents. The implication thereof is that the evidence of the prosecution regarding torture on the victim remains dislodged and proved. From the trend of the cross-examination, it can be understood that the defence stressed on the proof of dowry demand and it remained satisfied with it since the I.O. himself in his evidence stated that none of the witnesses told him about the demand of dowry and the accused respondents would not be made liable to punishment under section 498A, IPC. In my considered view, it is not necessary to bring home the charge of dowry demand in proving the case under section 498A, IPC. What is necessary is to prove the charge cruelty and the prosecution, as it could be seen from the evidence of above prosecution witnesses, has been able to prove the case of cruelty and for that matter, torture on the victim. It must be remembered that charge of dowry demand is relevant only in the case of offence under section 304B, IPC, which is not the issue in the present case. In view of the above discussions based on evidence on records, I hold that the prosecution has been able to prove the charge under section 498A, IPC and the present accused respondents are liable to conviction and sentence under the aforesaid provisions of law. Regarding the charge under section 306, IPC, it is an admitted position that there is no direct evidence on abetment against the present accused respondents. The prosecution depended wholly on circumstantial evidence and the conviction was ordered by drawing presumption. Section 306, IPC deals with abetment of suicide. For better appreciation, the aforesaid section is quoted below :- "306. Regarding the charge under section 306, IPC, it is an admitted position that there is no direct evidence on abetment against the present accused respondents. The prosecution depended wholly on circumstantial evidence and the conviction was ordered by drawing presumption. Section 306, IPC deals with abetment of suicide. For better appreciation, the aforesaid section is quoted below :- "306. If any person commits suicide, whoever abets the commission of such suicide, shall be punished with imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine." Again abetment has been defined under section 107 of the IPC, which reads as under - "107. A person abets the doing of a thing who - First - Instigates any person to do that thing, or Secondly - Engages with one or more other person or persons in any conspiracy for the doing of that thing. If an act or illegal omission takes place in pursuance of that conspiracy, and in order to the doing at that thing, or Thirdly - Intentionally aids, by any act or legal omission, the doing of that thing. Explanation 1.-A person who, by willful misrepresentation, or by willful concealment of a material fact which he is bound to disclose, voluntarily causes or procures, or attempts to cause or procure, a thing to be done, is said to instigate the doing of that thing. Explanation 2. - Whoever, either prior to or at the time of the commission of an act, does anything in order to facilitate the commission of that act and thereby facilitates the commission thereof, is said to aid the doing of that act." 11. But it must be borne in mind that the ordinary principle of resumption as provided under the Indian Evidence Act, has no application in the cases relating to abetment of suicide by a married woman and/or dowry death. For this purpose, the provisions under sections 113A and 113B of the Evidence Act only could be applied. For the case on hand, the court has to act under section 113A. The Apex Court has already explained the same in Hans Raj v. State of Haryana, (2004) 12 SCC 257 : AIR 2004 SCW 1283. It would be enough if paragraph 13 of the said judgment is quoted - "13. For the case on hand, the court has to act under section 113A. The Apex Court has already explained the same in Hans Raj v. State of Haryana, (2004) 12 SCC 257 : AIR 2004 SCW 1283. It would be enough if paragraph 13 of the said judgment is quoted - "13. Unlike section 113B of the Evidence Act, a statutory presumption does not arise by operation of law merely on proof of the circumstances enumerated in section 113A of the Evidence Act. Under section 113A, the prosecution has first to establish that the woman concerned committed suicide within a period of seven years from the date of her marriage and that her husband (in this case) had subjected her to cruelty. Even if these facts are established the court is not bound to presume that the suicide had been abetted by her husband. Section 113 A gives a discretion to the court to raise such a presumption, having regard to all the other circumstances of the case. One of the circumstances which has to be considered by the court is whether the alleged cruelty was of such nature as was likely to drive the woman. Thus, where the allegation is of cruelty it must consider the nature of cruelty to which the woman was subjected, having regard to the meaning of the word "cruelty" in section 498A, IPC. The mere fact that a woman committed suicide within seven years of her marriage and that she had been subjected to cruelty by her husband, does not automatically give rise to the presumption that the suicide had been abetted by her husband. The court is required to look into all the other circumstances of the case. One of the circumstances which has to be considered by the court is whether the alleged cruelty was of such nature as was likely to drive the woman to commit suicide or to cause grave injury or danger to life, limb or health of the woman......" 12. On earlier occasion, the Apex Court in Ramesh Kumar v. State of Chhatisgarh, (2001) 9 SCC 618 held that before the presumption may be raised, the foundation thereof must exist. On earlier occasion, the Apex Court in Ramesh Kumar v. State of Chhatisgarh, (2001) 9 SCC 618 held that before the presumption may be raised, the foundation thereof must exist. A bare reading of section 113A shows that to attract applicability of section 113A, it must be shown that- (i) the woman has committed suicide, (ii) such suicide has been committed within a period of seven years from the date of her marriage, (iii) the husband or his relatives, who are charged had subjected her to cruelty." It was also held that the presumption is not mandatory, it is only permissive. 13. In the present case, whatsis evident from the evidence of medical officer, PW-10, is that the cause of death is due to cardio respiratory failure because of eldrine poison. This medical witness, during cross-examination sated as follows :- "During the P.M. Examination over the dead body we did not get any smell of the anything. I cannot say whether any medicine was applied or consumed by the deceased prior to her death. It is not a fact that we did not go through the history of the patient purposely. We found the marks of vomiting in the wearing apparels, but we did not examine the wearing apparels chemically. We have examined the rectum and the vagina of the deceased and it is mentioned in the report. We did not preserve the vicera of the patient. 14. I do not find from the evidence of the prosecution witnesses that the victim was subjected to such an extreme physical and mental torture which became so intolerable for her compelling her to commit suicide. On the other hand, there is rather evidence in the deposition of PW-8 to the effect that the village bhaithak tried to solve the problem. It allowed the parties one month time to settle their dispute and in the meantime, victim would reside in the house of her parents and the accused respondent No.1, Pradesh Roy would bear all expenses. Thereafter another panchayat bhaithak was held after a month. In the said meeting deceased Namita and her husband Pradesh Roy and her mother were present and in that meeting the accused respondent Pradesh Roy expressed willingness to take back his wife and to live the married life. Accordingly, Namita went to her matrimonial home. This piece of evidence was not controverted in the cross-examination. In the said meeting deceased Namita and her husband Pradesh Roy and her mother were present and in that meeting the accused respondent Pradesh Roy expressed willingness to take back his wife and to live the married life. Accordingly, Namita went to her matrimonial home. This piece of evidence was not controverted in the cross-examination. It appears that efforts were made to reconcile the parties and, thus, the situation was in the process of improvement. There is no other evidence to the effect that even after such decision in the Panchayat bhaithak, the victim was again subjected to torture by the accused respondents. 15. In view of the above discussions, on the basis of evidence on records, I find it difficult to accept that the victim was driven by the accused respondents to commit suicide. The prosecution, in my considered view, failed to establish the charge under section 306, IPC. During hearing Mr. Ghosh, learned Addl. P.P., fairly submits that there is no such evidence against the accused respondent No.2 Smt. Chaya Rani Roy to record conviction and sentence against her and he would not oppose her acquittal. Accordingly, the judgment and order dated 13.2.2002 passed by the learned Sessions Judge, North Tripura, Kailashahar in ST 12(NT/K) 1999 acquitting the respondent No.2 is upheld. In the result, I convict the accused respondent No. 1, Pradesh Roy under section 498A, IPC and sentence him to undergo R.I. for 2(two) years with fine of Rs. 1,000 (one thousand) only, in default of payment of fine, further S.I. for l(one) month. 16. The accused respondent No.1, Sri Pradesh Roy shall surrender before the learned trial court within one week from today to serve the sentence and pay the fine amount, as directed, within the period of sentence. If he fails to surrender, as directed, the learned trial court shall take necessary step in accordance with law. The period of detention, during trial, shall be set off. 17. The present appeal stands partly allowed as indicated above. 18. Send down the LCR to the court below forthwith.